Court
News Ohio
Appeals
Court Rules Police Violated Man’s
Fourth Amendment Rights
By Jenna Gant
April 29, 2013
The
Second District Court of Appeals ruled that
the trial court should have suppressed evidence of drug possession
obtained in
a traffic stop for unpaid traffic tickets.
Evidence
of drug possession against a Dayton
man should have been suppressed by the trial court because it was
obtained in a
traffic stop not for a crime but for unpaid parking tickets, the Second
District
Court of Appeals has ruled.
Montgomery
County Court of Common Pleas
convicted Edward L. Dukes of a fifth degree felony and sentenced him to
community control sanctions after Dayton police officer Jeff Hiber
found crack
cocaine in the car he was a passenger in.
The
City of Dayton, in 2012, was owed more than
$750,000 in unpaid parking tickets, so the Dayton Police Department
issued a
new rule where drivers who had two or more unpaid parking tickets were
put on a
“tow-in-list” and officers could pull the cars over and tow them.
When
Hiber pulled over the car Dukes was a
passenger in and went to explain why he pulled the vehicle over, he
noticed an
open container of alcohol. He then put the driver and Dukes into his
cruiser
and went back to the car where he noticed a bag of crack cocaine on the
passenger side where Dukes was sitting. Hiber then arrested Dukes.
During
the trial court proceedings, Hiber said
he did not observe a traffic violation or criminal activity prior to
pulling
over the car Dukes was riding in. Dukes filed a motion to suppress
saying it
was an unlawful search and seizure.
The
lower court denied his motion and said:
“Observations of things in plain sight, made from a place where a
police
officer has a right to be, do not amount to a search in the
constitutional
sense … Here, Officer [Hiber] had authority to stop the car (and tow)
pursuant
to Dayton Police Department General Orders.”
Dukes
appealed the decision. The state told the
Second Court of Appeals that the trial court’s decision was correct and
argued
that the “public’s interest in obtaining the hundreds of thousands of
dollars
owed to the City for unpaid parking citations outweighed Dukes’ privacy
interest as a passenger in a vehicle on the tow list.”
The
Second District of Appeals disagreed and
said in its opinion authored by Judge Mary E. Donovan that while
seizures are
allowed without a warrant if illegal contraband is immediately
recognizable and
in plain view of a police officer, “(Hiber) did not observe a traffic
violation
or testify that he possessed a reasonable articulable suspicion of
criminal
activity when he stopped (Dukes’) car.”
Judge
Donovan said the appeals court has
previously noted in State v. Davie that “the plain view exception
authorizes
the seizure, without a search warrant, of an illegal object or
contraband that
is immediately recognizable as such when it is in plain view of a law
enforcement official.”
Judge
Donovan said in the case of an unlawful
traffic stop, evidence and statements obtained must be suppressed.
“Since
Duke’s Fourth Amendment rights were
violated by Hiber’s unlawful stop, the plain view doctrine does not
apply to
the crack cocaine which, along with Dukes’ admission that the crack
cocaine was
his, were subject to suppression,” Judge Donovan wrote.
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